Debating the Death Penalty

Jesse Walker vs. William Tucker

The American Spectator, a conservative magazine, recently invited me to debate William Tucker about the death penalty. Our point/counterpoint, which appeared in the July/August Spectator, is now online. Here's how my side of the dispute begins:

The typical conservative is well informed about the careless errors routinely made by the Internal Revenue Service, the U.S. Postal Service, and city hall. If he's a policy wonk, he may have bookmarked the Office of Management and Budget's online list of federal programs that manage to issue more than $750 million in mistaken payments each year. He understands the incentives that can make an entrenched bureaucracy unwilling to acknowledge, let alone correct, its mistakes. He doesn't trust the government to manage anything properly, even the things he thinks it should be managing.

Except, apparently, the minor matter of who gets to live or die. Bring up the death penalty, and many conservatives will suddenly exhibit enough faith in government competence to keep the Center for American Progress afloat for a year. Yet the system that kills convicts is riddled with errors.

Tucker, meanwhile, points out that murder rates rose after the death penalty was abolished nationwide and fell after "states started executing people in significant numbers in the 1990s." But states that do not have the death penalty have also seen murder rates decline in the same period—indeed, they've enjoyed a somewhat greater decline—so I'm not convinced he's found the reason for the rise and fall.

He also offers an argument about incentives:

For a criminal pulling off a holdup—or a rapist, or a "surprised" burglar caught by a homeowner—there's a very simple logic at work. The victims of your crimes are also the principal witnesses. They will call the police the minute you depart. They can identify you. They will probably testify at your trial. There's a very simple way to prevent all this: kill them.

The purpose of the death penalty is to draw a bright line between a felony and felony murder. If the penalty for rape or robbery is jail time, and for murder is more jail time after that, there isn't a huge incentive to prevent you from pulling the trigger.

I didn't mention it in my Spectator piece, but I have invoked that same bright line elsewhere to show why, if there is a death penalty, it should not apply to any crime less serious than murder. If a criminal can be executed for, say, kidnapping, he may well decide that he might as well kill people to evade capture, since arrest already means a strong possibility of being put to death. But while that bright line makes sense as an argument against a particularly poor way of applying the death penalty, I don't think it works as well as an argument for the death penalty itself. The same incentive, after all, applies to a murderer: He might decide to kill more people to evade capture too.

At any rate, you can read both Tucker's full argument and mine here, and then you can join the debate yourselves in the comments.

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90 responses to “Debating the Death Penalty”

Yeah I used to listen to a, I guess you’d call him, Conservative radio host, though he had a tinge of libertarianism. And the guy hated all the oppressive and somewhat vindictive bureaucracy government puts in our way, except for some reason the criminal justice system. Why do people who otherwise seem to want small government forget that the police and prosecutors are big government, too?

I don’t think they pretend it works perfectly. I think they think of it as “better” because criminal justice and self defense are within the traditional “just” or “proper” things government should provide.

A jury of your peers that has been carefully chosen to be both sympathetic to the prosecution, obedient to the judge’s directions, carefully managed as to what evidence they can see in controlled contexts and in agreement beforehand that the death penalty is a appropriate punishment for the crime you have been changed with becomes an arm of the state.

Exactly. A true “jury of your peers” is going to be about half composed of people who disagree with the death penalty, yet somehow that 50% of the population is not worthy to sit in judgement if the state wants to kill somebody.

Warty finds that he doesn’t have enough time in between picking up heavy things and putting them back down to inflict the amount of physical and psychological distress on unsuspecting people that he would like, so he finds that sharing retarded internet comments is an acceptable, if somewhat less satisfying, alternative.

You know, if/when I cross that line where I’m willing to murder someone, I’m really not going to give a fuck whether I suffer the death penalty or not. For me, specifically; if I’m willing to kill someone, chances are they needed killing.

This is actually the key point to all who would argue any penalty as having a deterrent effect.

The simple fact is once one gets much past the age of 13 or so the deterrent effect of punishment completely disappears. No one is dissuaded from doing anything from fear of punishment and to the extent they are they would be equally dissuaded from committing the act if the punishment were 24 hours in the stocks or beheading because it is the fear of shame in the eyes of their peers that keeps them in line.

And no one commits a death-penalty crime thinking they will get caught in the first place, much less being so sure they will get caught that it is the penalty phase of a lost criminal trial that acts as a deterrent.

Ah but the argument for the death penalty focuses on the deterrent effect. You almost never hear an argument in favor of the Death Penalty as a necessary form of retribution because the overwhelming majority of the populace would reject that argument as being barbaric

The simple fact is once one gets much past the age of 13 or so the deterrent effect of punishment completely disappears.

I agree. The justification for locking people in prisons should be to prevent the chronically dangerous and maliciously stupid from endangering others. It should not be used as a punishment for bad behavior.

If society at large could only embrace such an attitude it would lead to dramatically positive changes. For everyone. Unfortunately the majority is too obsessed with making people do what they’re told they are unable to see it.

At a certain point there has to be a mechanism for locking certain people away. The current system isn’t entirely bad at that. The very problem is the politicans and other top men who subvert that system and use it to force behavioral changes so people do what they’re told.

I am opposed to the death penalty as well, but everything Mr. Walker says as an objection applies equally to prison. For example:

He doesn’t trust the government to manage anything properly, even the things he thinks it should be managing.

Except, apparently, the minor matter of who gets to live or die. Bring up the death penalty, and many conservatives will suddenly exhibit enough faith in government competence to keep the Center for American Progress afloat for a year. Yet the system that kills convicts is riddled with errors

The same could be equally said about the system that deprives people of years and decades of their life. And don’t tell me one is reversible and one is not; you can’t give someone back those decades you stole from them. So, it seems to me this is an argument for anarchy.

Yeah, the argument is actually against the entire criminal justice system. It’s got relatively little to do with the death penalty in and of itself. We’ve been over this before. The justification for limiting the implications of the logic only to the death penalty is that it is uniquely irrevocable. Which I guess boils down to how well you think someone can be compensated for spending decades in a concrete box playing out the plot to Thunderdome with a little sodomy for show and losing their mind.

The same could be equally said about the system that deprives people of years and decades of their life. And don’t tell me one is reversible and one is not; you can’t give someone back those decades you stole from them. So, it seems to me this is an argument for anarchy.

According to the comments section of the Spectator, the prevailing view is, “So execution is imperfect? LIFE IS IMPERFECT! deal with it! Also = until they ban abortion you can kiss my ass about the death penalty”

yeah, in the meantime i’m going to stick with ‘immigration’ being the ‘tough fight to pick with conservatives that i think we can win’.

I wouldn’t place my trust in video evidence for much longer. I wouldn’t be surprised if video processing and 3D animation technologies aren’t already capable of generating “security camera” quality footage and integrating it into a video recording.

Without the capability of authenticating video with extremely high probability of detecting fakes, I would not trust video any more than other outdated and discredited forensic techniques.

I would raise the bar from beyond reasonable doubt to no doubt, in order to use it.

I would add a post hoc amendment clause as well.

A woman kills a pregnant mother and two of her children, cuts the baby out of her womb, leaves a trail of blood from the body to the baby and murder weapon in her own possession. We probably should fry her, but the next combination triple homicide/fetal kidnapping should *definitely* draw an ‘Go directly to electric chair’ card.

Given that you want to “FRY EM”, my proposal is to first fry all the men in the constabulary, the gendarmerie, the praetorian guard and his majesty’s secret service and all those who would wear a clowned costume and who can not hack it in the private, non rent-seeking sector.

Again, I’ve always wondered why people walk willingly, or at least without resistance, to their deaths. So many pictures of summary executions exist showing the victims kneeling, standing calmly, etc. I don’t get it. Better to be shot in the back while running away than to acquiesce to such a fate.

Is the implicit statement that “we will torture you and/or your comrades if you resist?”

Depending on the circumstances, stoically facing your death can not only serve as a final “fuck you” to your executioner, but also propagandize you into a martyr. More the case with political executions, I suppose.

Yeah, but a martyr for what? The stakes, at the time of your execution, are your life, nothing more. Others may try to co-opt the significance of your life, but YOU are the one, and only one, person that it makes a true.difference to. You can try to justify it by saying that others may benefit from your restraint or “dignity,” but the truth is that at that ultimate moment, you owe nothing to anyone else (I am assuming of course an unjust execution).

It isn’t clear to me why it seems to be accepted that the “proper” way to go to one’s death at the hands of another is to do so peacefully, almost implicitly accepting the legitimacy of their decision to take your life.

Is the implicit statement that “we will torture you and/or your comrades if you resist?”

Why is the statement, “We are going to kill you now.” implied.

I assumed most of these people are either worked/starved to the point where standing in defiance (let alone running) is an unworkable proposition or have been forced to kneel blindfolded so many times that there’s no possible way of telling the “you’re going to die” blind kneeling from the “it’s your once-a-day feeding” blind kneeling.

You misunderstand. We make it a point to let the death row inmate know rather clearly which “handcuffs, walk, sit” routine is going to end in lethal injection and which isn’t. I don’t assume that distinction is always made so clear.

Additionally, given the class of person usually subject to execution, I don’t assume that you are, or would be, the first to think, “When they try and kill me, I should run!”

Less of a knowledge of what’s in the black box as opposed to the knowledge that there probably is a black box that we each (or plenty of us anyway) could probably fill in.

For a criminal pulling off a holdup?or a rapist, or a “surprised” burglar caught by a homeowner?there’s a very simple logic at work. The victims of your crimes are also the principal witnesses. They will call the police the minute you depart. They can identify you. They will probably testify at your trial. There’s a very simple way to prevent all this: kill them.

Police are not going to put much effort into catching a mugging or minor burglary. They will put effort into catching a murderer. And even if they do catch you, it seesm stupid to risk a murder conviction to avoid a year or two on robbery.

What is the alternative? Life in prison? Should they use TAXES to pay for their “care”?

Let’s assume yes (feel free to say no), then how do you justify that? The family hasn’t suffered enough, now they must pay for the dirt-bag’s food and shelter?

Isn’t Tort (not Crime) the answer? There is a victim to this crime (ergo, a legitimate violation of NAP). Why shouldn’t it be up to the family to determine the sentence? Aren’t they the party that was “harmed”? Why does the state do anything here other than administer the trial?

As somebody who is pro-life (do not agress), I am pro-life on both sides of life. I don’t agree with abortion and I don’t agree with the Death Penalty, except in 2 very specific cases: 1) somebody who rapes and murders a child 2) somebody who comes to a complete stop on the Interstate with no reason (If you’ve ever driven in Washington, DC, you’d agree with this too).